Pirates are People, Too

by Kevin Jon Heller

Naomi Norberg has a fascinating post today at IntLawGrrls about the legal treatment of modern-day pirates. I just want to point readers to a recent article in The Sunday Times about British fears that captured pirates could ask for asylum in the UK:

The Royal Navy, once the scourge of brigands on the high seas, has been told by the Foreign Office not to detain pirates because doing so may breach their human rights.

Warships patrolling pirate-infested waters, such as those off Somalia, have been warned that there is also a risk that captured pirates could claim asylum in Britain.

The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.

[snip]

Britain is part of a coalition force that patrols piracy stricken areas and the guidance has troubled navy officers who believe they should have more freedom to intervene.

The guidance was sharply criticised by Julian Brazier MP, the Conservative shipping spokesman, who said: “These people commit horrendous offences. The solution is not to turn a blind eye but to turn them over to the local authorities. The convention on human rights quite rightly doesn’t cover the high seas. It’s a pathetic indictment of what our legal system has come to.”

A Foreign Office spokesman said: “There are issues about human rights and what might happen in these circumstances. The main thing is to ensure any incident is resolved peacefully.”

The guidance is the latest blow to the robust image of the navy. Last year 15 of its sailors were taken prisoner by the Iranians and publicly humiliated.

I don’t know whether a captured pirate could actually seek asylum, but I don’t see why he wouldn’t be protected by one of the various conventions — CAT, the ECHR, the Refugee Convention — against refoulement to a state that would likely torture him. Readers?

That suggestion was based on the assumption that interpretation of the word ‘jurisdiction’ in Article 1 ECHR should take into account the meaning of the same word in general international law. Of course, states do have jurisdiction over anything occurring or affecting (Lotus) ships flying their flag. Accordingly, so the reasoning of the Court would seem to go, persons affected by the state on those ships should enjoy the protection of the ECHR, because the word ‘jurisdiction’ is employed there.

I should say I don’t think too highly of that approach. The application of human rights may plausibly depend on the ability of the state to ensure compliance as a matter of fact, and thus on the an exercise of a degree of control, but I can’t see how the legal concept of jurisdiction comes into it. Surely it is not a condition of the application of the ECHR that the state has lawfully exercised its jurisdiction, vis-à-vis other states? I would therefore think that control or power, as a simple matter of fact, is the proper yardstick, without any recourse to general international law (except in that international law reflects the fact that such control is usually present in a state’s own territory). But that doesn’t matter here: if a state does not have control over persons on board its own warships, when does it have control? (Compare Öcalan v. Turkey, para. 91, concerning a plane manned by Turkish officials, rather than a warship)

I might add that the point you make in your heading, that pirates (or, for that matter, any other criminals) are people, too, is generally lost on the British Right, and particularly on the more ‘conservative’ newspapers – and, of course, on the yellow press of whatever persuasion.

The Conservatives have even vowed to repeal the Human Rights Act if elected. Not that they seem to have the faintest idea what the Act does, mind you…

There’s certainly a strong policy argument against extending the extraterritorial application of HR treaties too far if it means that states are going to refrain from arresting pirates on the high seas, for fear that they’ll be unable to return them to their country of origin due to the rule on non-refoulement.

No doubt they would be subject to British jurisdiction under the ECHR once on board ship, whether by virtue of the de facto control idea, or the de jure jurisdiction idea. And of course, while in British custody, one would expect them to have their rights respected. But extending the Soering idea to this situation does seem a little absurd…

4.13.2008
at 9:36 pm EST da23will

I don’t know the specifics of UK law, but surely one cannot get asylum if the persecution is from their own wrongdoing. It’s as if I killed someone, then ran to Britain and argued if they sent me back to the US I might get the death penalty.

You would certainly gain protection from the death penalty that way. That’s pretty much what Jens Soering, of Soering v. United Kingdom ‘fame’, had done.

da23will,

I don’t see how there could be ‘jurisdiction’, but Soering would not apply. There is only one concept of ‘jurisdiction’, which if present triggers all obligations under the Convention. There is no way of tailoring the Convention to the individual circumstances of control in any one case: see Bankovic, linked to above, para.75.

Yes, I realize that as a matter of law jurisdiction is an all or nothing thing, and that one cannot be selective in the rights one guarantees if jurisdiction obtains. My point was simply that the application of the ECHR to this situation is actually counterproductive if it means that the UK isn’t even going to detain pirates anymore. And moreover, just as a gut reaction, (disregarding the law for a moment), applying Soering here strikes me as a bit ridiculous.

4.14.2008
at 7:00 am EST da23will

So if a boat capsizes and people are in the water, let them drown. If you rescue them, then they can claim asylum. See how helpful it is to get legal advice before you do something stupid like saving someone’s life.

4.14.2008
at 4:26 pm EST HowardGilbert

Howard,

Those same people could ask (funny the article uses the verb “claim”) asylum without their boat capsizing, so you might as well save their lives.

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